Procedural Justice and Relational Theory

Empirical, Philosophical, and Legal Perspectives

Denise Meyerson, Catriona Mackenzie, Therese MacDermott, Denise Meyerson, Catriona Mackenzie, Therese MacDermott

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000207705
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book bridges a scholarly divide between empirical and normative theorizing about procedural justice in the context of relations of power between citizens and the state.

Empirical research establishes that people's understanding of procedural justice is shaped by relational factors. A central premise of this volume is that this research is significant but needs to be complemented by normative theorizing that draws on relational theories of ethics and justice to explain the moral significance of procedures and make normative sense of people's concerns about relational factors. The chapters in Part 1 provide comprehensive reviews of empirical studies of procedural justice in policing, courts and prisons. Part 2 explores empirical and normative perspectives on procedural justice and legitimacy. Part 3 examines philosophical approaches to procedural justice. Part 4 considers the implications of a relational perspective for the design of procedures in a range of legal contexts.

This collection will be of interest to a wide academic readership in philosophy, law, psychology and criminology.

Part I

Procedural justice in policing, courts, and prisons

Empirical reviews

1 The empirical study of procedural justice policing in Australia

Highlights and challenges

Kristina Murphy

DOI: 10.4324/9780429317248-3

1.1 Introduction¹

In 2014, US President Barack Obama established a Presidential Task Force on 21 ^st Century Policing. This was borne out of concern over the mounting tensions between America’s police and racial minority communities. Numerous police shootings of unarmed black men pointed to a widespread cultural problem of racism in American police agencies. The violent Black Lives Matter Protests that occurred in the US in 2020 reveal this problem has still not been resolved. The President’s Task Force released its final report in 2015 (President’s Task Force 2015). The report cited research—including Australian research—espousing the virtues of procedural justice policing. Procedural justice policing is a style of policing that emphasises the fair and respectful treatment of citizens. The report cited evidence linking police use of procedural justice to citizens’ enhanced trust and confidence in the police. At the same time, the report also recognised the normative importance of procedural justice for policing, highlighting that ‘trust between law enforcement agencies and the people they protect and serve is essential in a democracy’ (p. 1). Thus, the Task Force recommended that procedural justice should be a guiding principle on which quality policing should be based.

In Australia, a long history of strained relationships between police and minority communities also exists. Chan (1997, pp. 108–115) explored police–minority relations in NSW in the mid-1990s and noted—as in the US—that the culture of the NSW Police Service supported widespread racism toward minority communities. Australian police agencies have since made a concerted effort to recognise the value of procedural justice for improving police–community relations. The Queensland Police Service (2017) specifies, as a key research priority, the strengthening of its relationship with the community and highlights procedural justice as important for achieving this goal. However, as evidenced by the 2020 Black Lives Matter protests that occurred in Australia issues regarding police racism still remain in Australia.

Since the release of the President’s Task Force report in 2015, the empirical study of procedural justice in policing has proliferated exponentially. Scholars have sought to measure public perceptions of the police, with the aim of ascertaining the value of procedural justice for improving citizen experiences with police (e.g. Nix et al. 2015). Some scholars have also focused on whether police officers can be trained to support and be procedurally just in interactions with the public (e.g. Skogan, van Craen & Hennessy 2015), and others have sought to understand the situational contexts under which procedural justice policing matters most to citizens (e.g. Wolfe et al. 2016).

Prior to this new wave of empirical research, a large number of procedural justice policing studies had already emerged from Australia, including studies with minority communities. This chapter presents an overview of the procedural justice policing scholarship that has been undertaken in Australia both before and after the Presidential Task Force released its final report. Drawing on these Australian studies, the chapter will discuss how procedural justice has typically been measured in Australian research and why the police should be concerned with procedural justice. The chapter then highlights key empirical findings from Australian research. Overall, findings show that procedural justice is important to Australians and can strengthen positive relations between the police and the public. Finally, the challenges associated with undertaking empirical research of this nature will be discussed before some reflections are made about the future direction of procedural justice policing research. Before doing this, the following sections provide an overview of what procedural justice is and why procedural justice has gained prominence in policing research.

1.2 What is procedural justice policing?

Procedural justice in policing refers to the quality of the interpersonal treatment people receive from police and the fairness of the procedures police use to make decisions (see Tyler 1990, p. 7). Tyler (1990, p. 7) noted that four key elements are required for a police–citizen interaction to be considered as procedurally just. These four elements are: trustworthiness; respectful treatment; neutrality; and voice. A police officer who displays sincerity in being helpful, honest and open, and who acts consistently and in the best interests of citizens is an officer who will be viewed as trustworthy. Respectful treatment refers to police behaviour that displays respect for people’s rights and exemplifies dignified and polite treatment. People are particularly sensitive to signs that they are being treated respectfully by police, and they respond very negatively to signs of rude behaviour. In fact, rude behaviour from police typically attracts the largest number of citizen complaints in Australia each year (Porter & Prenzler 2017, p. 874). Police convey neutrality when they treat all individuals and groups in the community equally, and refrain from acting on biases or pre-existing views about people when making decisions. The over- or under-policing of certain communities can be perceived as police not providing neutral treatment across society (Tyler & Wakslak 2004, p. 254). Finally, voice refers to the ability of citizens to have a say in a situation that involves them. Having the opportunity to air a concern or explain one’s side of the story to a police officer before a decision is made, and being genuinely listened to, are indicators of procedural justice. Being consulted in police decision-making processes also constitutes an important element of voice. For example, research on Muslim communities shows that the provision of voice is an extremely important feature of Muslims’ interactions with police in counter-terrorism. A major criticism that Muslims have of police engagement efforts is that police do little in the way of consulting Muslims or involving Muslims in genuine discussions about how radicalisation in the Muslim community should be dealt with (Cherney & Murphy 2016, p. 491).

1.2.1 Deterrence versus procedural justice?

Policing is grounded on a deterrence-based model of crime control, where the focus is on detecting and apprehending lawbreakers (Mazerolle et al. 2014, p. 57). A deterrence-based model of policing assumes that people are rational actors who will be deterred from disobeying police or breaking the law because the consequences of being non-compliant will be detrimental to their welfare. In other words, people weigh up the costs and benefits of obeying police or the law. If the perceived costs of non-compliance outweigh the perceived benefits, then compliance will be the rational choice. A deterrence-based model assumes that police can best promote law-abiding behaviour through displaying power, effective enforcement and creating severe sanctions for non-compliance (Nagin 2013, pp. 205–206).

The problem with a deterrence-based policing approach, however, is it cannot explain why people still comply with police and the law when there is little chance of being detected breaking the law or when sanctions for non-compliance are minimal (Murphy, Bradford & Jackson 2015, p. 103). It also cannot explain why contact with the criminal justice system can increase re-offending. Anwar and Loughran (2011, p. 673), for example, noted that persistent offenders respond differently to deterrence. They showed that serious offenders reported being less concerned with sanction risk when compared to less persistent offenders. Deterrence perspectives are particularly problematic when explaining discretionary forms of law-related behaviour. Discretionary law-related behaviours include contacting police to report a crime or victimisation, or assisting police in crime prevention activities. Discretionary law-related behaviours are essential to the effective operation of the criminal justice system. Without such forms of behaviour, crimes would not be identified, witnesses would not come forward to provide evidence, and police would be unable to work with communities to promote and maintain order. Deciding not to engage in these behaviours will not—in most cases—result in a sanction. Yet most people engage willingly in these types of discretionary behaviour. At the same time, research with marginalised groups (e.g. crime victims, racial/ethnic minorities, those living in high crime neighbourhoods) finds these groups often avoid contact with police even in times of need (e.g. Murphy & Barkworth 2014, p. 178). Using the threat of punishment with individuals who do not engage in discretionary activities is likely to exacerbate disengagement.

Procedural justice scholars have therefore responded to the limitations of deterrence-based policing by arguing that most people cooperate and comply with legal authorities and laws because they believe it is right to do so, not because they fear the consequences of doing otherwise. For discretionary forms of law-abiding behaviour, procedural justice scholars suggest that concerns about fair treatment and respect are likely to be particularly salient in motivating people’s decisions to engage with police.

According to the procedural justice perspective, law-related behaviour is driven by normative and relational concerns, not instrumental concerns. Here, people cooperate and comply because they believe in the legitimacy of police and believe police and laws are entitled to be obeyed. In other words, the procedural justice perspective is underpinned by the normative assumption that authorities who treat people fairly have earned their rightful position to govern others, are entitled to be regarded as legitimate and have the right to request law-abiding behaviour from citizens (e.g. Hinds & Murphy 2007, p. 27). Studies demonstrate that an authority’s legitimacy can be damaged when an authority behaves badly. An authority that abuses its power or treats its citizens poorly will be distrusted by the community, resulting in an unwillingness of citizens to volunteer information, or to cooperate or comply with the authority and its laws (e.g. Murphy, Mazerolle & Bennett 2014, p. 408).

1.3 Why should procedural justice be of concern to police?

There are three main reasons why police should be concerned with procedural justice. The first reason is based on an instrumental argument. Mazerolle et al. (2014, p. 3–5) argue that authorities that govern with procedural justice will be better able to foster compliance and discretionary cooperation from citizens and will have to rely less heavily on deterrence. It has also been suggested that procedurally just dialogue is a more low-cost and time-efficient strategy for obtaining compliance when compared to deterrence (Drahos & Krygier 2017, p. 5). Put simply, procedural justice can be cheaper and more effective than deterrence. An instrumental argument has appeal for police agencies because they are increasingly being tasked to do more with less.

The second reason why police should be concerned with procedural justice is based on a normative argument. ‘A widely shared normative expectation about the appropriate use of legal power is that justice officials should act in accordance with the principles of fair treatment and impartial decision-making’ (Trinkner, Jackson & Tyler 2018, p. 281). Police have a moral obligation to exercise their authority in a procedurally fair way, irrespective of any instrumental benefit such an approach may have in facilitating their role in maintaining cooperation and compliance. In other words, procedural justice should be viewed as a common good in itself. While authorities can view procedu...